High Court of Ireland Decisions

S. (A.) v. Minister for Justice, Equality and Law Reform & Ors [2004] IEHC 41 (24 February 2004)

 


THE HIGH COURT

JUDICIAL REVIEW

Record Number 2004/104J.R.

IN THE MATTER OF THE REFUGEE ACT, 1996 AND IN THE MATTER OF THE IMMIGRATION ACT, 1999 AND THE IMMIGRATION ACT, 2003 AND THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000 AND IN THE MATTER OF THE CONSTITUTION OF IRELAND

BETWEEN

A S

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE GARDA NATIONAL IMMIGRATRION BUREAU, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr. Justice Herbert delivered the 24^th day of February, 2004

A. S. is a native of Romania. In a passport issued on the 19^th April 2001 and bearing number 05322078, his date of birth is given as 31^st July 1980. This passport contains an Irish visa number 379467 issued at Bucharest in respect of the period 19–02–2003 to 13-05–2003 and a visa issued at Dublin in respect of the period 31-03-2003 to 02-11-2003. Also produced in evidence was a Romanian driving licence for the period 16-10-1998 to 16-10-2008: an Irish driving licence for the period 02-01-2004 to 01-01-2006 and a Garda National Immigration Bureau Certificate of Registration with an expiry date, 02-11-2003. Each of these documents contains a photograph of the Applicant, A. S. and each gives his date of birth as 31^st July 1980. Also produced in evidence was a Work Permit to employ an non-E.E.A., national issued by the Department of Enterprise, Trade and Employment in respect of the period, 03-11-2002 to 01-11-2003, giving the name of the relevant employee as A. S., nationality Romanian, passport number 05322078 and date of birth 30^th July 1980. This document also contains a photograph. I am satisfied that the zero in the day of the date of birth as given in this document is no more that a typographical error. It was accepted by Counsel for Mr. S. that this Work Permit was issued in respect of his client.

Detective Garda Whelan of the Garda National Immigration Bureau gave evidence. She identified the Applicant, A. S. and stated that accompanied by Detective Garda John Kingston also of the Garda National Immigration Bureau, she had arrested A. S. at Flat No. 5, Parnell Place, on the 7^th February 2004 and had conveyed him in a garda patrol to Cloverhill Detention Centre and completed all necessary steps for his detention there. She did so she told the Court because she had reasonable cause to suspect that he was a person who has sought asylum in the state on the 14^th December 2000 in the name Ady Singeorz and in respect of whom a Deportation Order was made by the Minister for Justice, Equality and Law Reform on the 8^th November 2001.

Detective Garda Whelan told the Court that at 06.45 hours on the 7^th February 2004 she and Detective Garda John Kingston had gone to this flat where she had arrested a man called C. S. in respect of whom a Deportation Order had been made. She said that the Applicant and another man and a woman were also in the flat at this time. C. S. was taken by her and her colleague in the garda patrol car to Cloverhill Detention Centre.

Subsequently they were contacted in the garda patrol car by Detective Garda Paul Cullen also of the Garda National Immigration Bureau. Detective Garda Whelan said that she was the driver of the patrol car and Detective Garda John Kingston was the observer. Detective Garda Cullen told them to return Flat Number 5, Parnell Place and to arrest the man calling himself A. S.. He said that he believed that A. S. was a brother of C. S.. Detective Garda Cullen told them that he had confidential information that A. S. had sought asylum in the State in the year 2000 in the name Ady Singeorz. He said that a Deportation Order had been made by the Minister for Justice, Equality and Law Reform in respect of Ady Singeorz. A Notice under Section 3 (3) (b) (ii) of the Immigration Act 1999, as amended by Section 10 (8) (2) of the Illegal Immigrants (Trafficking) Act 2000 had, he said, been served on Ady Singeorz but that he had not presented to the Garda National Immigration Bureau as required by the Notice.

Detective Garda Whelan stated that she had knocked on the door of the flat. The door was opened by the Applicant, A. S.. She said that she identified herself to the Applicant as a member of the Garda National Immigration Bureau. She told the Court that the Applicant had handed her a passport and a work permit in the name of A. S.. She asked the Applicant had he sought asylum in this State in the name of Ady Singeorz. The Applicant, she said told her that he had not. She told the Court that she informed the Applicant that she had reason to belief that a Section (3) Notice and a Deportation Order had been served on him and that he was an evader. She said that she arrested the Applicant at the flat at 08.30 hours pursuant to the provisions of Section 5 (1) of the Immigration Act, 1999, as amended by Section 10 (b) of the Illegal Immigrants (Trafficking) Act, 2000. She said that she cautioned the Applicant employing the usual formula and then conveyed him in the garda patrol car to the Cloverhill Detention Centre. She told the Court that in the course of the journey in the garda patrol car to Cloverhill Detention Centre, the Applicant admitted that he had sought asylum in the State in the name of Ady Singeorz but said that his real name was A. S. and that he held a valid passport and visa and a valid work permit.

Detective Garda Whelan produced in Court what she described as an "electronic photograph" taken of Ady Singeorz, a Romanian national whose date of birth was the 31^st July 1980, at the time of his application for asylum in this State on the 14^th December 2000. She stated that she believed that the person in the photograph was the Applicant, A. S. and that this was the same person as appeared in the photograph affixed to the passport and other documents produced in Court and which I have already mentioned in this judgment. She stated in cross-examination that she was quite satisfied that A. S. and Ady Singeorz were one and the same person, namely the Applicant. She produced a photo-print of C. S. when it was put to her by Counsel for the Applicant that the person calling himself Ady Singeorz might in fact be C. S.. It was patently obvious that the person in this photo-print, identified as C.S., was a different person to the person before the Court and appearing in all the other photographs and photo-prints.

Mr Terry Lonergan, an Assistant Principal Officer of the Repatriation Unit of the Immigration Division of the Department of Justice, produced and proved in evidence the notice pursuant to Section 3(3)(b)(ii) and the Deportation Order. He told the Court that in the Questionnaire completed by Ady Singeorz at the time of his application for asylum in this State, he gave his address in the State as Number 68, North Strand Road, Dublin 3. Mr Lonergan told the Court that no change of address was ever notified to the Department. He said that the Section 3 Notice and the Deportation Order were both sent by registered post to Number 68, North Strand Road, Dublin 3 and were returned to the Department by An Post marked "Not called for". He said that on the 23^rd November 2001 the file on Ady Singeorz in his Division was marked "Evader" and the Garda National Immigration Bureau was notified accordingly. In cross examination he said that under the Legislation the Section 3 Notice and Deportation Order were deemed to have been duly served by virtue of the provisions of Section 6 (2) of the Immigration Act 1999 as inserted by Section 10(c)(ii) of the Capital Illegal Immigrants (Trafficking) Act, 2000.

No other evidence was called by the Respondents. The Applicant did not give evidence.

Section 5(1) of the Immigration Act 1999 as substituted by Section 10 (b) of the Illegal Immigrants (Trafficking) Act, 2000 provides that where a member of An Garda Síochána with reasonable cause suspects, (the emphasis is mine) that a person against whom a Deportation Order is in force has failed to comply with any provision of the Order or with a requirement in a notice under Section 3(3)(b)(ii), he or she may arrest him or her without warrant and detain him or her in a prescribed place.

Nothing was said in evidence which established that Detective Garda Paul Cullen held a senior rank to Detective Garda Whelan. However, I am satisfied that the information conveyed by him to her in the garda patrol car through Detective Garda John Kingston actually caused her to have a genuine suspicion, as she stated in her evidence, that the Applicant A. S. was Ady Singeorz, an evader. I am satisfied, that though stated to be based on "confidential information", a reasonable person in her position "assumed to know the law and possessed of the information which in fact was possessed, [by her] would believe that there was reasonable and probable cause, [to arrest the Applicant]." (See Dallison –v- Caffrey [1964] 2 A.E.R.6.10 at 6.19) I do not think that it in any way follows from the decision in O'Hara –v- Chief Constable of the Royal Ulster Constabulary [1997] 1 A.E.R. 129 H. of L., that such information may only come from a "superior officer" at a structured briefing. I do not accept the proposition that the fact that the Applicant had remained in the flat and had opened the door suggests that Detective Garda Whelan acted hastily and before arresting the Applicant should first have checked the information provided by Detective Garda Paul Cullen. In my judgment, having regard to all the circumstances Detective Garda Whelan was fully justified in acting as decisively as she did on the information furnished to her.

I am quite satisfied on the evidence that the Applicant A. S., is the same person as Ady Singeorz and is the subject matter of a Deportation Order made by Minister for Justice, Equality and Law Reform on the 8^th November 2001 and not subsequently amended or revoked by the Minister.

It was submitted on behalf of the Applicant that the Visas, which I have already made reference, issued in Bucharest and Dublin and the Work Permit issued by the Department of Enterprise, Trade and Employment, suspended the operation and effect of this Deportation Order and the Respondents are estopped from seeking to rely upon it. Reference was to a passage in the judgment of Finnegan, J., (as he then was) in the case of D.P. –v- The Governor of the Training Unit and Others [2001] 1 IR 492 at 499 where he held that:-

"The true effect of that provision in the Deportation Order is that should the Applicant return to the State following deportation and whether by compulsion or with permission and without the deportation being revoked by the Minister he must again forthwith leave the State when the compulsion ceases or the permission expires".

In the instant case in the Affidavit sworn on the 10^th February 2004 on behalf of the Applicant by Alan Costello, who describes himself as, "the lawful employer of the Applicant", it is deposed that though the Work Permit expired on the 2^nd November 2003, "the Department of Enterprise, Trade and Employment, through Ms Lorraine Stynes has indicated to my Secretary, one Sheila Rafter that the said employment permit was being renewed and that in the meantime it was all right for the Applicant to continue working. This indication was given on the 19^th January 2004 ………………..….".

In my judgment there can be no doubt but that Mr A. S. has returned unlawfully to this State, - an offence under Section 3(10) of the Immigration Act 1999,- in defiance of the Deportation Order made by the Minister for Justice, Equality and Law Reform on the 8^th November 2001. This Order has not been amended or revoked by the Minister pursuant to the provisions of Section 3(11) of the Immigration Act 1999. It was submitted on behalf of the Applicant that there was no proof that the Applicant ever knew of the existence of the Section 3 Notice or the Deportation Order. This does not affect the validity or effect of either document which by Section 6(2) of the Immigration Act 1999 are deemed to have been validly served on him. There was no evidence that the Applicant, A. S. had informed the Authorities to whom he had made application for the Visas or the Officers of the Department of Enterprise, Trade and Employment through he had obtained the Work Permit that he had previously applied for asylum in this State under the assumed name of Ady Singeorz. Had he done so, the existence of the Deportation Order would almost certainly have come to light and the Visas and the Work Permit would probably not have been issued or would not have been issued without the knowledge and consent of the Minister for Justice, Equality and Law Reform. These documents were therefore obtained by deceit or misrepresentation and cannot be relied upon by the Applicant.

It was further argued on behalf of the Applicant that the issue of the Visas and the Work Permit gave rise to a legitimate expectation on the part of the Applicant that the Deportation Order would be revoked, amended or not enforced, so as to enable him to remain in the State at least for so long as work permits were issued to him by the Department of Enterprise, Trade and Employment. Reference was made to an unapproved copy of a judgment of Finlay Geoghegan, J., in a case of Igor Ostopov –v- The Minister for Justice, Equality and Law Reform, Ireland and The Attorney General delivered on the 30^th January 2003. This judgment does not appear to me to support this contention: in fact I read this judgment as a strong authority to the contrary. In her judgment at page 15 and following Finlay Geoghegan, J., held as follows:-

"It was submitted [on behalf of the Minister] that having regard to the existence of the Deportation Order, even if a court were to conclude contrary to the other submissions being made that the Applicant had substantial grounds for contending that he had a legitimate expectation to a declaration that he is entitled to remain in the State, that it would be unlawful for the Courts to grant such declaration, having regard to the existence and continuing validity of the Deportation Order. In the light of the conclusions I have already reached in relation to the continuing enforceability of the Deportation Order this submission appears to me well-founded.

The next submission made on behalf of the Minister was that in order to ground an application for a legitimate expectation, the Court must find that a matter of fact that the Applicant had the expectation before moving to consider certain other matters referred below. It was submitted that in the absence of any affidavit sworn by the Applicant, the court could not make such a finding. I accept that this is a correct statement of principle. However on the facts of this case having regard to the fact that the Applicant was at all material times in custody and remains in custody I might have been prepared to overlook the absence of an affidavit of the Applicant at the leave stage. The continuing absence of such affidavit will probably be fatal to obtaining the relief sought.

It was thirdly submitted that for an expectation to be legitimate a court must conclude that there are positive grounds which are sufficient to render it objectively justifiable and reliance was placed upon the statement of principle to that effect in Delaney - Judicial Review of Administrative Action: a comparative analysis (2001 Round Hall Sweet and Maxwell) at page 113. It was submitted that having regard to the above statutory schemes there are not substantial grounds for contending that any expectation that the Applicant be entitled to remain in the State by reason of the work permit, visa and permission to land, notwithstanding the existence of the Deportation Order was objectively justifiable having regard to the statutory schemes outlined above. Again I consider this submission to be well-founded. Even ignoring the Deportation Order there is nothing which implies an entitlement to remain in the State beyond the 1^st December 2002.

The forth submission made was that the Deportation Order is an order made by the Minister for Justice. In order that the Applicant establish a legitimate expectation to remain in the State, notwithstanding the Deportation Order he would have to establish that there was a representation made by or on behalf of the Minister for Justice that he be entitled to remain in the State, notwithstanding the Deportation Order. Devitt –v- the Minister for Education, [1989] I.L.R.M. 639 was relied upon to support this proposition. Again this appears to me to be well-founded having regard in particular to the fact that the Deportation Order is an order made by the Minister for Justice and Article 5(7) (d) of the Aliens Order 1946 (as amended as above) makes the Applicant's entitlement to remain longer that one month in the State subject to a permission from the Minister for Justice.

As already stated it appears to me that any one of the above submissions which I have accepted as well-founded may have been sufficient to establish that the Applicant cannot be considered to have substantial grounds for contending that he has a legitimate expectation which entitles him to the declaration sought."

I adopt what was held by Finlay Geoghegan, J., in that case which would be sufficient to dispose of the claim by the Applicant in this case based upon the principle of legitimate expectation. In my judgment the issuing of the Visas and additionally or alternatively the Work Permit did not amount to a representation of or on behalf of the Minister for Justice, Equality and Law Reform to the Applicant that he could lawfully re-enter this State. The existence of what Finlay Geoghegan, J., describes as, "the statutory scheme" and the critical significance of the Deportation Order to the effective operation of that Scheme would render an argument based on alleged representations untenable. In any event this Applicant could not lawfully expect to rely upon representations procured by his own misrepresentations or deceit.

In the circumstances I am satisfied that there are lawful and bona fide grounds for the Applicant's detention and the Applicant is not entitled to an Order directing his release from such detention by virtue of the provisions of Article 40 Section 4, subsection 2 of the Constitution.